Criminal penalties for retailers of infringing goods to be reduced


On June 23 2010 the latest amendments to the Spanish Criminal Code, which will enter into force on December 23 2010, were published in the Official State Gazette.

Under the amendments, there will be a considerable reduction in the criminal sanctions imposed on unauthorized retailers of goods protected by IP rights and retailers of counterfeit products of low monetary value (ie, goods for which the financial gain does not exceed €400).

Under the current Criminal Code, IP offences are punishable by a six-month prison sentence and a fine equivalent to 12 to 24 months (ie, the defendant must pay a certain sum of money every day for the duration of the term). The penalties may increase to a prison sentence of one to four years, a fine equivalent to 12 to 24 months and disqualification from any profession related to the offence for a period of two to five years where any of the following aggravating circumstances apply:

  • The financial gain is particularly high;
  • The nature of the offence is particularly serious in view of the value of the goods or of the damages sustained;
  • The defendant belonged, even temporarily, to an organization or association involved in IP crime; and
  • Young persons under the age of 18 were used to commit the offence.

However, upon entry into force of the amendments to the Criminal Code, the criminal sanctions imposed on retailers shall be reduced as follows:

  • Except where any of the aforementioned aggravating circumstances apply, the judge may impose a fine equivalent to three to six months or a community service order of 31 to 60 days if the defendant displays certain characteristics and the financial gain is low.
  • Where the financial gain does not exceed  €400, and where no aggravating circumstances are present, the infraction shall be considered as a summary offence, and the judge shall issue a tagging order for a duration of four to 12 days or a fine equivalent to one to two months.

According to the legislature, the reduction in criminal sanctions for small-scale IP crimes arises from the need to adapt the penalties to the type of individuals who usually carry out these offences - that is, individuals living in a state of poverty, who are sometimes exploited by criminal organizations.

This reform results from the current social climate, in which the courts are reluctant to incarcerate individuals (for the most part, immigrants) and to issue condemnatory rulings in such cases. It is hoped that the reduction in criminal sanctions will overcome the reluctance of the courts and that they will deliver more condemnatory rulings in cases involving the infringement of IP rights.

Juan José Caselles Fornés, Elzaburu, Madrid

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